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Think before you appeal by John Bolch

It is a rare thing that both parties will be satisfied with a financial/property settlement imposed upon them by a court. In many cases one of them will feel aggrieved by the court’s decision and want to launch an immediate appeal.

However, before they do so there are one or two things that they should consider.

Firstly, there is no automatic right to appeal against financial orders. Before you can proceed with the appeal you will first require the permission of the court. Permission should first be sought from the court that made the order, at the hearing at which the order was made. If that is refused then permission must be sought from the appeal court, which will be a ‘higher’ court than the court that made the order.

When will permission be granted? Well, the rules are quite strict, and designed to stop hopeless or frivolous appeals. Permission will only be given where the court considers that the appeal would have a real prospect of success, or there is some other compelling reason why the appeal should be heard. It has been said that this means that the person wishing to appeal must show that it is more likely than not that that the appeal will succeed – a difficult thing to do in most cases.

Even if permission is granted then serious consideration should be given to the costs involved in the appeal. This was the message from the judge in the recent case of Walker v Walker. In that case the husband was granted permission to appeal against a financial order by Mr Justice Holman. However, he stressed to the husband that if his appeal was not successful then it was a virtual certainty that he would be ordered to pay all the costs of the wife (in relation to the appeal), as well as his own costs. He therefore advised that:

“…a very cold commercial assessment needs to be taken as to the wisdom and overall affordability of embarking on an appeal. That is a matter upon which the husband must reflect very carefully indeed and upon which he must receive legal advice.

This is excellent advice to anyone considering an appeal.

My last point relates to the limitations of appeals when they go ahead after permission has been granted.

The first thing to note is that the appeal court will not normally carry out a complete rehearing. Fresh evidence is not generally heard. Instead, the appeal court will usually simply review the decision of the lower court, on the basis of the findings of fact made by that court.

The second thing to note is that the appeal court will not allow the appeal just because it would have come to a different decision from that made by the lower court. The appeal will only be allowed where the decision of the lower court ‘was wrong or unjust because of a serious procedural or other irregularity in the proceedings in the lower court’.

In particular, it must be remembered that decision made by the judge in the lower court was discretionary. This means that they had a range of reasonable decisions that they could make. For an appeal to succeed, you must show that the decision was so plainly wrong as to be outside of that range. It does not matter if the appeal judge would have made a different decision – the original decision will still stand, if it is within the range of reasonable decisions.

In short, think carefully before launching an appeal, and take proper legal advice!

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

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  1. Andrew says:

    Of course if the costs of an appeal followed the event and appellants were required to provide security by insurance . . .

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